Legal representation in workplace discipline hearings

The High Court has held that in certain circumstances, an employee has the right to be represented by a lawyer at internal disciplinary hearings, not just a workplace colleague or union official.
This is of practical importance to employers and employees with "vulnerable" clients, patients, pupils etc or anyone working in a regulated area.

• Facts

G. was employed as a music assistant at the X School. It was alleged he kissed a 15 year old boy. After disciplinary proceedings G. was dismissed. The School had a duty to report G. to the Secretary of State for Children Schools and Families to decide if he should be entered on the register of those who are unsuitable to work with children.

• Legal issues

G. asked that at the internal disciplinary hearings he be represented by his legal representative. The employer school refused.

G. alleged that the refusal to permit legal representation at the internal hearings amounted to a breach of Article 6 of the ECHR (right to a fair trial). In judicial review the Administrative Court held that :

• the school was required to have regard to Article 6 of the ECHR.

• the internal disciplinary and appeal procedures must be viewed as part of the same procedure as the Secretary of State's procedures for the entry onto the register of persons unsuitable to work with children. Because of the gravity and impact of the allegations - the serious consequences of a dismissal - school X should have allowed G to be represented at the disciplinary hearing by his legal representatives and not just the normal trade union rep or fellow worker.

• the School's disciplinary process and the Secretary of State's barring process are truly both part of a single non-criminal process. Although it is not criminal the consequences of the allegation are so severe that G. is entitled to extra protection under the ECHR right to a fair trial.

• the potential to claim unfair dismissal in the Employment Tribunal would not be an adequate alternative remedy.

The School has been granted permission to appeal to the Court of Appeal. So has G. who lost a separate argument that the internal disciplinary proceedings amounted to a 'criminal' charge.

Case report G-v- X School

In the UK the ECHR can only be directly enforced as a stand alone claim by employees if their employer is a public sector body or carries out public functions (such as a private company transporting prisoners to court). So many private sector employers may think the case is not relevant to them.

However, all courts tribunals are required to interpret unfair dismissal legislation so far as possible to comply with human rights law. When considering whether an employer has fairly dismissed an employee (whether public or private sector), any alleged breaches of human rights may be taken into account.

• Action !

Employers need to check their policies and procedures to cover this ruling.

• What next ?

There must be very many cases where without the full weight of being placed on a Govt barring list the employer's decision has great gravity and impact and the allegations have very serious consequences. It is quite likely that this case (if upheld on appeal) will be extended into more conventional jobs where there are no barring lists but dishonesty or serious personal misconduct has serious consequences.

 

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By Peter Miller, Head of Employment Law at Bowling & Co
62 Broadway, Stratford, London E15 1NG
Tel: 020 8221 8000 Fax: 020 8519 5504
Direct Telephone: 020 8221 8065
Email: Peter.Miller@bowlinglaw.co.uk
Website: www.bowlinglaw.co.uk

This Article is written as a general guide and is not a substitute for professional advice.
You are strongly recommended to obtain specific professional advice before you take any action.